COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Bray and Senior Judge Duff 

Argued at Alexandria, Virginia 

BRENT ARTHUR M. WHITAKER 

v. Record No. 1790-95-4 MEMORANDUM OPINION* BY 

 CHIEF JUDGE NORMAN K. MOON 

COMMONWEALTH OF VIRGINIA JUNE 4, 1996 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 Judith M. Barger, Assistant Public Defender 

(Clinton O. Middleton, Senior Assistant 

Public Defender; Office of the Public 

Defender, on brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Brent Arthur M. Whitaker was convicted of malicious 

wounding, and sentenced in accordance with the jury's verdict to 

six years in the penitentiary. Whitaker argues on appeal that 

the trial court improperly denied him a jury instruction on 

self-defense. He also argues that the trial court erroneously 

permitted the jury to consider evidence, during the sentencing 

phase of the proceeding, of two felony convictions for breaking 

and entering and one felony conviction for grand larceny. We 

affirm the conviction and sentence. 

 On February 2, 1995, Fairfax Police Officer Elizabeth 

Eppright was on foot patrol at a shopping center. She was in 

uniform and carrying a gun and a police radio. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 Officer Eppright testified that she was walking in front of 

the shopping center, about thirty yards from the entrance to a 

drugstore, when she saw Whitaker and two other young males 

running out of the drugstore carrying beer. As they continued to 

run, Officer Eppright ran after them and yelled "Stop, police" 

several times. The three turned to look at her, and then 

continued running across the front of the shopping center. They 

turned after the last store and ran to the back of the shopping 

center. Officer Eppright pursued them and saw them standing in 

back of the store, Whitaker at the top of a small incline and the 

other two below him. Officer Eppright acknowledged that Whitaker 

appeared to have stopped in compliance with her order, but the 

other two appeared uncertain of whether to stay or continue 

running. Eppright testified that although it was dark outside, 

she had no trouble seeing due to streetlights and lights on the 

rear of the building. 

 Officer Eppright approached Whitaker and grabbed him by the 

shoulders. As she took Whitaker's shoulders, she turned to his 

companions and told them that they had better stop as well. 

Whitaker then hit her in the eye, grabbed her, pulled her towards 

him and kicked and struck her repeatedly. Officer Eppright fell 

to the ground. She then radioed for assistance and pulled her 

gun. She stood up and was face-to-face with Whitaker. She held 

onto him and told him, "I'm going to shoot you." The gun became 

stuck between Whitaker's left arm and his side. He continued to 

kick Eppright, and told her to go ahead and shoot. She managed 
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to free the gun and shot Whitaker. She testified that Whitaker 

was standing sideways to her when she fired. 

 Whitaker acknowledged that he and his friends had stolen the 

beer. He testified that Eppright shouted "Stop, boys, stop" and 

that he did not know that she was a police officer, but instead 

thought that she worked for the drugstore. He stated that he 

dropped the beer as she came around the corner, and planned to 

give the beer back so that she would let him go. He claimed that 

Eppright slammed into him, grabbed him by the shoulders, shook 

him, and shouted obscenities. He shook her back and they got 

into a "little struggle." He claimed that he hit Eppright once 

after she drew her gun, because he was scared. He then tried to 

flee, took two or three steps, and was shot. Whitaker stated 

that he was shot in the back; expert testimony showed that the 

shot went through the lower left back of Whitaker's jacket. 

 Whitaker was charged with malicious wounding of a law 

enforcement officer. He requested an instruction on self-defense 

where the defendant was to some degree at fault, as well as an 

instruction on the use of force to repel an assault.1 The trial 

 1 The proposed instructions read as follows: 

 H. If you believe from the evidence that the 

defendant was to some degree at fault in 

provoking or bringing on the difficulty, and 

if you further believe that when attacked: 

 (1) he retreated as far as he safely could 

under the circumstances; 

 (2) in a good faith attempt to abandon the 

difficulty; and 

 (3) made known his desire for peace by word 

or act; and 

 (4) he reasonably feared, under the 
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court indicated initially that it would allow the self-defense 

instruction, but not the other instruction because it was 

redundant. On further review, the court decided to deny both 

instructions. The jury convicted Whitaker of the lesser included 

offense of malicious wounding. 

circumstances as they appeared to him, that 

he was in danger of bodily harm; and 

 (5) he used no more force than was 

reasonably necessary to protect himself from 

the threatened harm, then you shall find the 

defendant not guilty. 

 J. A person in reasonable apprehension of bodily 

harm by another is privileged to exercise 

reasonable force to repel the assault, but 

the amount of force must be reasonable in 

relation to the perceived threat. 

 At the sentencing phase, the Commonwealth introduced 

evidence of several juvenile convictions, including two for 

breaking and entering and one for grand larceny. For the 

breaking and entering convictions, the record indicated that 

counsel was appointed and that Whitaker pled guilty, withdrew his 

plea, and then re-entered it. He was remanded to the Department 

of Corrections for twelve months. For the grand larceny 

conviction, the record indicated simply that Whitaker waived 

counsel, with no information on the surrounding circumstances. 

Whitaker pled guilty and was ordered to make restitution and 

perform community service. 

 JURY INSTRUCTIONS 

 A party is entitled to have the jury instructed according to 

the law favorable to his or her theory of the case if credible 
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evidence in the record supports the instruction. See Foster v. 

Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991); 

Belfield v. Commonwealth, 11 Va. App. 310, 313, 398 S.E.2d 90, 92 

(1990). Where evidence tends to sustain both the prosecution's 

and the defense's theory of the case, the trial court must give 

requested instructions covering both theories. Diffendal v. 

Commonwealth, 8 Va. App. 417, 422, 382 S.E.2d 24, 26 (1989). In 

determining whether a jury instruction was properly refused, we 

view the evidence in the light most favorable to the party who 

offered the instruction. See Martin v. Commonwealth, 13 Va. App. 

524, 526, 414 S.E.2d 401, 401 (1992) (en banc). 

 A person who reasonably apprehends bodily harm by another is 

privileged to use reasonable force in self-defense. Foster, 13 

Va. App. at 383, 412 S.E.2d at 200; Diffendal, 8 Va. App. at 421, 

382 S.E.2d at 25. This includes the right to defend against 

aggression by a police officer in certain circumstances, 

including where, as here, the defendant was allegedly unaware of 

the officer's status and was placed in fear of bodily harm. See

Delacruz v. Commonwealth, 11 Va. App. 335, 398 S.E.2d 103 (1990). 

 "Justifiable" self-defense arises when the defendant is 

completely without fault in precipitating the incident. 

"Excusable" self-defense arises when the defendant, who was at 

some fault in precipitating the incident, abandons the fight and 

retreats as far as he safely can before he attempts to repel the 

attack. Foote v. Commonwealth, 11 Va. App. 61, 68, 396 S.E.2d 

851, 855 (1990). The instruction offered by Whitaker was for 
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"excusable" self-defense--properly so, as his unlawful conduct in 

stealing the beer precipitated the conflict between himself and 

Officer Eppright.2

 Even when viewed in the light most favorable to the 

defendant, the evidence does not support the proposed instruction 

on self-defense. Whitaker did not retreat as far as he safely 

could under the circumstances; indeed, he did not retreat at all 

before striking Officer Eppright, but immediately began to 

grapple with her when she tried to apprehend him. Similarly, he 

did not make known a desire for peace or make a good faith effort 

to abandon the difficulty--when Officer Eppright shook him, as he 

claimed, he immediately responded in kind and then struck her. 

The trial court did not err in refusing to grant the proposed 

instruction. 

USE OF PREVIOUS CONVICTIONS AT SENTENCING 

 It is now well established that uncounseled misdemeanor 

convictions can be considered for sentencing purposes. Nichols 

v. United States, U.S. , 114 S. Ct. 1921, 1927-28 (1994); 

see also Griswold v. Commonwealth, 21 Va. App. 22, 461 S.E.2d 592 

 2 Whitaker complains primarily of the trial court's failure 

to grant the self-defense instruction, but also refers to the 

court's failure to grant the instruction on use of force. The 

self-defense instruction covered the appropriate use of force 

where the defendant was at fault. Even if the trial court erred 

in refusing the instruction on self-defense, which it did not, 

there would be no error in refusing the second instruction. 

"When granted instructions fully and fairly cover a principle of 

law, a trial court does not abuse its discretion in refusing 

another instruction relating to the same legal principle." Gray 

v. Commonwealth, 233 Va. 313, 351, 356 S.E.2d 157, 177-78, cert.

denied 484 U.S. 873 (1987). 
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(1996). However, this principle does not apply to felonies. In 

felony cases, the defendant has the right to counsel unless that 

right is intelligently and competently waived. Nichols, 114 

S. Ct. at 1926 n.9 (citing Gideon v. Wainwright, 372 U.S. 335 

(1963)). A sentence that is based on a prior felony conviction 

invalid under Gideon must be set aside. Id. (citing United 

States v. Tucker, 404 U.S. 443, 446-47 (1972)); see also James v. 

Commonwealth, 18 Va. App. 746, 752, 446 S.E.2d 900, 904 (1994). 

 Whitaker did not appeal his convictions directly based on 

lack of counsel, but instead seeks to attack them collaterally in 

this proceeding. In the context of a collateral attack, a 

"presumption of regularity" attaches to the judgment of 

conviction, even where the question is waiver of constitutional 

rights. Parke v. Raley, 506 U.S. 20, 29-30 (1993). The 

Commonwealth has the burden of going forward with evidence 

showing the previous convictions, which burden it satisfied here 

through production of certified court records of convictions 

appearing on their face to be valid. James, 18 Va. App. at 752, 

446 S.E.2d at 904; see Code § 19.2-295.1. There must be some 

evidence establishing that the defendant was represented by 

counsel or had properly waived counsel in the earlier criminal 

proceeding. Id. (citing Burgett v. Texas, 389 U.S. 109, 114 

(1967)). Once the Commonwealth has made this showing, the 

presumption of regularity applies to the convictions and the 

defendant must produce credible evidence of a constitutional 

violation in order to invalidate them. Id.
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 Here, as in James, the record of conviction for the breaking 

and entering charges indicated that Whitaker was represented by 

counsel. Although the record does not affirmatively show that 

counsel was present when the guilty plea was re-entered, such 

evidence is not necessary under Parke and James. Whitaker 

presented no evidence that he was unrepresented by counsel when 

he entered his guilty plea. The trial court therefore did not 

err in allowing the jury to consider these convictions for 

sentencing purposes. 

 For the conviction of grand larceny, the record indicated 

that Whitaker waived counsel. In the context of a collateral 

attack, this evidence is sufficient to trigger the presumption of 

regularity. Whitaker presented no evidence to rebut the 

presumption. Accordingly, the trial court did not err in 

allowing the jury to consider this conviction for sentencing 

purposes.3 For these reasons, we affirm Whitaker's conviction. 

 Affirmed.

 

 3 Whitaker argues that the grand larceny conviction was 

inadmissible because the records did not show a "final order of 

conviction." The records showed that Whitaker pled guilty and 

was ordered to perform community service and make restitution and 

was placed on supervised probation. The judge also checked off a 

box indicating that "imposition of any and all other dispositions 

is withheld indefinitely." While the form is somewhat ambiguous, 

it indicates a guilty plea followed by imposition of a penalty, 

and the record of conviction was admissible under Code 

§ 19.2-295.1.